SECOND SECTION
CASE OF POJOGA v. THE REPUBLIC OF MOLDOVA
(Application no. 39635/08)
JUDGMENT
(Merits)
STRASBOURG
19 May 2020
This judgment is final but it may be subject to editorial revision.
In the case of Pojoga v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Arnfinn Bårdsen, President,
Valeriu Griţco,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
the application against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Ecaterina Pojoga (“the applicant”), on 15 May 2008;
the decision to give notice to the Moldovan Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 19 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The application concerns the alleged unfairness of civil proceedings as a result of the upholding by the Chișinău Court of Appeal of an appeal lodged out of time. It raises questions under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE FACTS
1. The applicant was born in 1958 and lives in Chișinău. She was represented by Ms N. Hriplivîi, a lawyer practising in Chișinău.
2. The Government were represented by their Agent ad-interim at the time, Ms R. Revencu.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant divorced her husband, R., in 1996. In 2003 she sold a plot of land to third parties. Shortly after that R. sought the annulment of the sale contract, arguing that the land was joint marital property.
5. On 31 March 2006 the Centru District Court rejected R.’s claims as ill‑founded. R. appealed, but on 14 May 2006 the Chisinau Court of Appeal issued a procedural ruling (încheiere) finding that R. had not paid the court fees and obliging him to do so within twenty days from the date of receiving its ruling. According to a handwritten note by R. on that ruling, he received its copy on 5 October 2006 and undertook to pay the court fees within twenty days.
6. On 23 November 2006 the Chisinau Court of Appeal found that R. had failed to comply with its ruling of 14 May 2006, namely to pay the court fees within twenty days, and dismissed his appeal on that ground.
7. On 4 December 2006 R. lodged a new appeal against the judgment of 31 March 2006.
8. On 8 May 2007, after holding a hearing in the case, the Chișinău Court of Appeal adopted a judgment by which it upheld R.’s appeal and quashed the Centru District Court’s judgment of 31 March 2006. It appears that the applicant was present at the hearing and asked for the appeal to be dismissed. She did not argue that the appeal had been lodged out of time.
9. The applicant lodged an appeal on points of law with the Supreme Court of Justice in which she contended, inter alia, that the Court of Appeal’s upholding of R.’s appeal had been abusive because the appeal had been lodged out of time.
10. On 30 January 2008 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the Court of Appeal’s judgment. The court noted that the argument about R.’s appeal being late could not be raised in cassation proceedings because the applicant had failed to raise it before the Court of Appeal. One of the judges on the panel (I.C.) wrote a dissenting opinion, in which she expressed the view that the Supreme Court of Justice should have upheld the applicant’s contention about R.’s appeal being lodged out of time and should have quashed the judgment of the Court of Appeal. She argued that respecting a time-limit for lodging an appeal was an imperative obligation and that, according to the law, if there had been no request for the extension of the time-limit, the Court of Appeal had been under a duty to dismiss the late appeal on its own motion.
11. After the annulment of the sale of the plot of land, R. initiated new proceedings against the applicant seeking the recovery of part of the value of that plot. Those proceedings are pending to date.
RELEVANT LEGAL FRAMEWORK
12. According to Article 362 (1) of the Code of Civil Procedure in force at the material time, the time-limit for lodging an appeal was twenty days calculated from the date of the communication of the reasoned judgment.
13. According to Article 369 (1) (b) of the Civil Procedure Code, the court vested with the right to examine an appeal must dismiss it if it has been lodged out of time and the applicant has not requested an extension of the time-limit for lodging it.
14. According to the case-law of the Supreme Court of Justice, the issue of time-limits for lodging appeals and appeals on points of law is, unlike issues relating to the merits of the case, a matter of public policy which is to be examined by the courts on their own motion, irrespective of whether the parties are raising it or not (see, for instance, the judgments of the Supreme Court of Justice in the cases No. 2r-951/12 S.A. “CET-Nord” vs Ina Soboli and No. 2r-196/15, Mihai Movilă vs Î.S. “Calea Ferată din Moldova”).
THE LAW
15. The applicant complained that the Chișinău Court of Appeal’s decision to quash the judgment of 31 March 2006, following an appeal lodged by the opposing party outside the legal time‑limit, had breached her right to a fair trial. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
16. The Government submitted that the applicant had failed to raise the issue of the late appeal before the Court of Appeal. That omission amounted to a failure to exhaust domestic remedies and, therefore, her application must be declared inadmissible on that ground. In the alternative, the Government argued that R.’s appeal had not been lodged out of time.
17. The applicant disagreed and argued that the Court of Appeal had been under a legal obligation to apply the provisions concerning the time‑limit on its own motion. Therefore, her failure to raise that issue before the Court of Appeal could not amount to a failure to exhaust domestic remedies. In any event she did raise that issue in her appeal on points of law before the Supreme Court of Justice.
18. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Ozdil and Others v. the Republic of Moldova, no. 42305/18, §38, 11 June 2019).
19. The Court notes that the applicant did not argue before the Court of Appeal that R.’s appeal was late. Nevertheless, it appears from the text of Article 369 (1) (b) of the Code of Civil Procedure and from the practice of the domestic courts that the Court of Appeal had an obligation to examine of its own motion the issue concerning the respect of the time-limit to lodge the appeal. In such circumstances, it cannot be said that the Court of Appeal was not given an opportunity to prevent or put right the violation alleged before the Court. Not only was the applicant entitled reasonably to expect the Court of Appeal to abide by the imperative provisions of the Code of Civil Procedure but she had also expressly raised that issue before the Supreme Court after the Court of Appeal had failed to do so. Therefore, the Government’s objection must be dismissed (see, Dănilă v. Romania, no. 53897/00, § 41, 8 March 2007; Dan v. Moldova, no. 8999/07, § 26, 5 July 2011 and Găitănaru v. Romania, no. 26082/05, § 34, 26 June 2012).
20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
21. The applicant reiterated that the quashing of the judgment of 31 March 2006 was contrary to the principle of legal certainty and in breach of her righto to a fair trial.
22. The Government endorsed the reasons relied upon by the Chișinău Court of Appeal in its decision to uphold the appeal against the judgment of 31 March 2006 and submitted that there has been no breach of the Article 6 § 1 of the Convention in the present case.
23. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).
24. In Carpov v. the Republic of Moldova (no. 6338/11, 12 February 2019 [committee]), the Court found that the allowing of an appeal lodged out of time by the Chişinău Court of Appeal had been in breach of the principle of legal certainty. The Court held that the “loss” by a litigant of a final favourable judgment had been incompatible with the Convention.
25. Turning to the facts of the present case, the Court notes that the applicant also lost a final judgment in her favour as a result of the upholding of R.’s appeal by the Chișinău Court of Appeal. It further notes that R.’s appeal against the judgment of the Centru District Court of 31 March 2006 was lodged on 4 December 2006, that is more than eight months later. Since his first appeal was lodged in April 2006, it is reasonable to believe that he had received a reasoned copy of the judgment he appealed against no later than April 2006. Thus, the Court considers it established that R.’s appeal was lodged outside the twenty-day time-limit provided for by Article 362 of the Code of Civil procedure. By allowing such an appeal, the Chișinău Court of Appeal set at naught an entire judicial process which had ended in a final and enforceable judicial decision and the matter was thus res judicata. Thus, it infringed the principle of legal certainty and breached the applicant’s right to a fair hearing under Article 6 § 1 of the Convention (see Brumărescu v. Romania, cited above, §§ 61 and 62).
26. There has accordingly been a violation of Article 6 § 1 of the Convention.
27. The applicant complained that the Chișinău Court of Appeal’s judgment of 8 May 2007 had had the effect of infringing her right to peaceful enjoyment of her possessions as secured by Article 1 of Protocol No. 1 to the Convention which, in so far as relevant, provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law ...”
28. The parties made similar submissions as in respect of the admissibility of the complaint under Article 6 § 1 of the Convention (see paragraphs 16‑17 above).
29. For the reasons mentioned in paragraphs 18-19 above, the Court considers that this complaint is not inadmissible within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible.
30. The applicant submitted that the abusive quashing of the judgment of 31 March 2006 had breached her right to the peaceful enjoyment of her possessions.
31. The Government considered that R.’s appeal had not been lodged out of time.
32. The Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and the cases cited therein). Furthermore, quashing such a judgment after it has become final and cannot be appealed against will constitute an interference with the judgment beneficiary’s right to the peaceful enjoyment of that possession (see Brumărescu, cited above, § 74). Even assuming that such an interference may be regarded as serving a public interest, the Court finds that it was not justified since a fair balance was not preserved and the applicant was required to bear an individual and excessive burden (ibid., § 75-80).
33. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
34. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
35. The applicant claimed 20,400 euros (EUR) for pecuniary damage.
36. The Government submitted, inter alia, that the applicant’s claim was unsubstantiated and asked the Court to reject it.
37. The Court considers that the question of the application of Article 41 in respect of pecuniary damage is not ready for decision. The question must accordingly be reserved and a further procedure fixed, with due regard to the possibility of an agreement being reached between the Moldovan Government and the applicant.
38. The applicant also claimed EUR 10,000 in respect of non‑pecuniary damage.
39. The Government contended that the claim was excessive and asked the Court to dismiss it.
40. Having regard to the violation found above, the Court considers that an award in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage.
41. The applicant also claimed EUR 3,840 for the costs and expenses incurred before the Court.
42. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss it.
43. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 240, 23 February 2016. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards EUR 1,500 for costs and expenses.
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of non‑pecuniary damage plus any tax that maybe chargeable on this amount and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses plus any tax that maybe chargeable on this amount.
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
(a) reserves the said question;
(b) invites the Moldovan Government and the applicant to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be.
Done in English, and notified in writing on 19 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Arnfinn Bårdsen
Deputy Registrar President